Court Postponement Delays Amendment to HHS Grant Provision

The Department of Health and Human Services (HHS), awaiting a court decision, continues to kick the can down the road when it comes to making effective amendments to a particular provision within its federal grant regulations at 45 C.F.R. Part 75.

In a Sept. 28 Federal Register notification, HHS explains that it issued amendments to certain provisions within 45 C.F.R. Part 75 as part of a Jan. 12, 2021, final rule, including amendments to its provisions at 45 C.F.R. Part 75.300(c) and (d). Specifically, the rule amended paragraph (c), which had stated, ‘‘It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation. Recipients must comply with this public policy requirement in the administration of programs supported by HHS awards.’’ The rule amended paragraph (c) to state, ‘‘It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services, to the extent doing so is prohibited by federal statute.’’

45 C.F.R. Part 75.300(d) had previously stated, ‘‘In accordance with the Supreme Court decisions in U.S. v. Windsor and in Obergefell v. Hodges, all recipients must treat as valid the marriages of same-sex couples. This does not apply to registered domestic partnerships, civil unions or similar formal relationships recognized under state law as something other than a marriage.’’ The rule amended paragraph (d) to state, ‘‘HHS will follow all applicable Supreme Court decisions in administering its award programs.’’

The changes to this provision were challenged in February in the U.S. District Court for the District of Columbia in the case, Facing Foster Care et al. v. HHS. On Feb. 9, the court postponed the effective date of the challenged portions of the rule by 180 days, until Aug. 11. HHS in the Sept. 28 Federal Register notice stated that on Aug. 5, the court further postponed the effective date of the rule until Nov. 9, 2021.

So now we wait to see what happens next with this terminology. Any bets that it gets delated further come November?

Join us for our following Thompson Grants events:
Advanced Federal Grants Forum | October 13 - 14, 2021 | Virtual Event
Federal Grants Forum For Tribal Nations | October 27 - 28, 2021 | Virtual Event